The Battle over the Constitution

Claiming to speak for the Constitution, the Right has convinced many Americans of an upside-down account of what the Framers were doing and timid historians have let these false impressions harden into conventional wisdom. Beverly Bandler says a vigorous and honest debate about this history is needed now.

By Beverly Bandler

In 1987, Americans celebrated the 200th anniversary of the Constitution of the United States with great fanfare. Warren E. Burger, chairman of the Commission on the Bicentennial of the Constitution and Chief Justice of the U.S. from 1969 to 1986, wrote of the “vitality of this remarkable document that has withstood 200 years of change, including a Civil War, two World Wars, and 40 years of Cold War.”

This coming Sept. 17, the 225th anniversary of the Constitution portends to be a significantly less joyous occasion. Given the political vitriol of the last several years, it will probably be marked with heated discord of division and partisanship.

The U.S. Constitution on display at the National Archives.

The past 25 years have brought unforeseen, astounding and alarming changes in the nation. We have a United States “unraveling” with its more than 300 million people in various stages of either polarized engagement or numbed complacency. Those who are politically engaged appear to be participants in a non-violent (so far, fortunately) civil war that has echoes of both the 1861-1865 Civil War and the late Weimar Republic.

The nation in 2012 is not a “more perfect union,” and “justice” and “domestic tranquility” are in short supply. “Defense” has come to mean more often aggressive “offense.” The “pursuit of happiness” appears to be limited to the 1 percent. Most scholars agree that wealth inequality in the U.S. is at historic highs.

Americans appear to have lost confidence in crucial institutions. The approval rating for the Congress sank as low as 10 percent. American mass culture, heavily influenced by banal television offerings, heavy on violence and “skin,” is generally frivolous and foolish; the infrastructure is crumbling; the education system has been severely compromised; politics has become dominated by people who make a virtue out of ignorance.

Susan Jacoby, author of The Age of American Unreason, has asserted that: “America is now ill with a powerful mutant strain of intertwined ignorance, anti-rationalism and anti-intellectualism”– cognitive dissonance on a profound scale. For example, the Texas curriculum standards in science and history are not being written by accredited academics, they are being developed by a dentist and insurance salesman.

A sizable portion of the American public cannot distinguish between opinion and argument, between belief and logic, between perception and reality. Too many not only reject facts and reason, but accept bald lies with equanimity. U.S. politics, especially on the Right, appears to have entered “a parallel universe where ignorance, denial and unreason trump facts, evidence and rationality,” according to an article in New Science magazine.

Particularly ominous is the Right’s nationwide effort to disenfranchise voters who are most likely to vote Democratic. The first Voter ID laws of the current era were passed in 2003. As of March 2012, 19 states require no ID, but the other 31 have requirements that range from non-photo ID to strict photo ID. In Pennsylvania, a GOP-supported voter-ID law threatens to disenfranchise 10 percent of the state’s voters.

Meanwhile, the U.S. Supreme Court and the federal appellate courts have undergone a dramatic shift to the right, as distinguished law professor and constitutional expert Erwin Chemerinsky points out. The goal is to enforce a conservative worldview on the people of the United States by “reinterpreting the Constitution by reshaping the judiciary Basic long-standing principles of constitutional law have been overturned already by the Rehnquist and Roberts courts.”

Some ultra-conservatives seek to replace America’s democratic system with a theocracy. It can be argued that the United States is, in fact, no longer a republic. While we can debate when the Republic’s death began, some trace it to the late 1960s. Others point to the 1970s. But it certainly accelerated with the so-called Reagan Revolution in the 1980s and the subsequent second Gilded Age.

Many consider the nail in the coffin to be the Citizens United decision by the Supreme Court on Jan. 21, 2010. This decision confirmed corporations as “people” and opened the flood gates of corporate money into a political system that was already broken, dysfunctional and corrupt.

Certainly the United States now has all the unmistakable signs of an oligarchy, the corrupt rule of the wealthy. Americans have been witnessing the hostile takeover of the government by corporations, their corporados, and by religious zealots, a takeover already in its late stage.

The country appears to be becoming what social futurist Sara Robinson calls “Plantation America” and what political philosopher Sheldon Wolin calls “inverted totalitarianism.” The title of constitutional lawyer Bruce Fein’s 2008 book states the country’s condition clearly: Constitutional Peril: The Life and Death Struggle of Our Constitution and Democracy.

The Right’s fundamentalism has been aided immeasurably by the general ignorance and what has been characterized as “learned helplessness” among the 70 percent of the American public and a complacent and complicit corporate media.

“Laissez-faire government, unchecked corporate power and the deprivations and inequalities they [the right-wingers] bred weren’t just bad public policy – they were constitutional infirmities,” writes William E. Forbath, professor of law and history. “But liberals have largely forgotten how to think, talk and fight along these lines.”

Making a similar point, journalist Robert Parry wrote: “In Roberts’s decision [rejecting the Commerce Clause as constitutional justification for the Affordable Care Act], you find references to the faux founding history that the Right has been assembling over the past several decades.”

In all the confusing public commentary about the Constitution in today’s turbulence, this is clear: most Americans know very little if anything about the U.S. Constitution. Most of what we “know” is based on superficial exposure, sketchy beliefs, myths and assumptions. This is particularly true for those not exposed to civics education and history over the last several decades; for many of us the memory of this part of our education is dim.

It has been pointed out that: “You can read the U.S. Constitution, including its 27 amendments, in about a half-hour, but it takes decades of study to understand how this blueprint for our nation’s government came into existence.” It requires interpretation and an awareness of history.

The Constitution decidedly does not justify free-market fundamentalism, and Americans will not find these words in the Constitution: “Democracy,” “God,” “Capitalism,” “Free Market,” or “Socialism.” “Liberty” is mentioned three times, but it is not defined. “Welfare” is mentioned twice and also not defined.

Given the current acrimonious political landscape, it is crucial that Americans be better informed about the Constitution — and not only about our founding documents but about American history.

A well-educated citizenry is particularly important if the current effort to enact a 28th amendment is to succeed, one that states that corporations are not persons and can be regulated, a proposal in response to the Supreme Court ruling on Citizens United v. Federal Election Commission.

Robert Dahl, who has been called “the premier democratic theorist of our time,” has explored the “vital tension between the Americans’ belief in the legitimacy of their constitution and their belief in the principles of democracy.” He suggests that we think about the Constitution in a new way, and his hope is that we start discussing it.

Let us also think about the Founders and Framers in a new way: several were unquestionably extraordinary not only for their time but any time. They were, however, as Hendrik Hertzberg points out, “circumscribed by what they knew, and what they thought they knew, and what they lived too soon to have any way of knowing. …

“Later, in the nineteenth and twentieth centuries, an explosion of democratic theory, experience, and practice yield up an abundance of new democratic norms and mechanisms.”

Constitutional law professor Jack M. Balkin emphasizes: “The framers expected that their language, not their intentions, would control future generations. They created, in John Marshall’s words, a ‘constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.’”

As Justice Oliver Wendell Holmes Jr. wrote in 1920, the Constitution’s words “called into life a being” whose “development could not have been foreseen completely by the most gifted of its begetters.” Hence we must interpret our Constitution “in the light of our whole experience and not merely in that of what was said a hundred years ago.”

The Founders and Framers were not infallible demi-gods, they were mortal men who tried to do the very best they could at that time and place.

Though Chief Justice Roberts upheld the constitutionality of health-care reform under the narrow taxing power of Congress — while rejecting the use of the broader Commerce Clause — constitutional scholar Bruce Ackerman said, “John Roberts’ decision on health care places the country at a constitutional crossroads.”

Pamela S. Karlan, professor of public interest law, warns that the Supreme Court decision on the Affordable Care Act “has given Americans who care about economic and social justice a reason to worry.”

In the November 2012 election, the stakes are higher than most Americans understand. In a polarized nation, the Constitution can again become what Professor Richard R. Beeman reminds us: “Our nation’s most powerful symbol of unity.” But to meet that desirable goal, we must do the homework required.

We would all like to think that there are short cuts, that we can save our Republic and our Constitution the easy way. We cannot. And we’re late.

Beverly Bandler is a public affairs professional whose career spans some 40 years. Her credentials include serving as president of the state-level League of Women Voters of the Virgin Islands and extensive public education efforts in the Washington, D.C. area for 16 years. She writes from Mexico.

Ackerman, Bruce. “Roberts Raises the Election Year Stakes.” The Huffington Post, 2012-06-29.Bailyn, Bernard.To Begin the World Anew: The Genius and Ambiguities of the American Founders. Knopf; 1st edition (January 7, 2003).________ Ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification: Part One, September 1787-February 1788. Library of America (June 1, 1993).Balkin, Jack M. “Alive and Kicking.” Why no one truly believes in a dead Constitution.” Slate, 2005-08-29.Beeman, Richard R. “A Republic, If You Can Keep It.” The Constitutional Center.Bowen, Catherine Drinker. Miracle At Philadelphia: The Story of the Constitutional Convention May September 1787. Republished, Back Bay Books (September 30, 1986).Chemerinksy, Erwin.The Conservative Assault on the Constitution. Simon & Schuster; First Edition (September 28, 2010).Dahl, Robert Alan. How Democratic is the American Constitution? Yale University Press; 2 edition (December 1, 2003).Fein, Bruce. Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. Palgrave Macmillan (September 16, 2008).Forbath, William E. “Workingman’s Constitution.” The New York Times, 2012-07-05.Hertzberg, Hendrik. “Framed Up. What the Constitution gets wrong.” The New Yorker, 2002-07-29.Jacoby, Susan. The Age of American Unreason. Vintage; Reprint edition (February 10, 2009).Karlan, Pamela S. “No Respite for Liberals.” New York Times, Sunday Review, 2012-06-30.

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11 comments for “The Battle over the Constitution”

robert

July 22, 2012 at 01:36

dear sir… one important point to your article…… we are3 NOT a democracy…we a re a constitutional republic. with the BLESSING of secured liberties endowed to us by our CREATOR. you may not like this fact that because it has a ‘religious’ tone ..and i gather if your references made about the ‘right’ ,’conservative right’ and ‘turning our contry into a theocracy’ ..shows to me that your not grasping the fopunding of this country and what it took the founders to get to the point of realizing that Secured Liberties are form GOD and that Governments limited role is to protect and maintain these rights. firstly…the rights are endowed and inalianble…secondly…the constitution is a contract whereby the government offered to protect those rights bestowed by God. ..are we clear here sirs? this is a CONSTITUTIONAL REPUBLIC…not a democracy..stop posting this huge lie!

Neko

July 15, 2012 at 19:10

There are at least a dozen Republican Congresspeople who put the security of Israel before the USA Constitution. These folks deserve no less than an immedient military execution for treason.
And if the US Military refuses to deal with them soon you will soon see American civilians shooting EVERYONE wearing a government uniform!
The message to Congress….stop pandering to Israel or get executed for TREASON!

FoonTheElder

July 12, 2012 at 11:46

The Republican politicians have changed the Constitution to read “Me the people”.

Morgaine Bergman

July 11, 2012 at 13:57

Ultimately, when the public stops being willing to observe, question, think, and deduce for themselves based upon their own observations and experience, this is the result. Free people are not enslaved to others’ opinions. They do not need someone else to tell them the truth; they know the truth because they think for themselves. It’s time we stopped looking for someone to blame and started taking personal responsibility, examining how we have each contributed to the problems we now face, and taking definitive action to remedy them–together.

Steve Naidamast

July 10, 2012 at 17:00

An “informed citizenry” is about as possible as a two-thirds majority within a legislative institution; both are nearly impossible to achieve except under the most ardent circumstances.

Both concepts have been used throughout the history of the United States to blur the realities of sociology under such circumstances; the larger a group of people the less informed it will become, a two-thirds majority was used as a basis for critical legislative issues for the very fact that such a majority is just about impossible to achieve.

In the case of an “informed citizenry”, you could very well have a citizenry that is highly intelligent but their political participatory habits produce at best only lukewarm results. A classic example currently is Sweden, which has a very high standard of citizen awareness and intelligence. And yet, slowly but surely it is now being reported that fascism is creeping into that society.

When a rule offers up a that a two-thirds majority within a group is required to approve certain forms of legislation, it is done so with the understanding that attaining such a majority will be fraught with difficulties. And this is exactly what the Constitutional framers wanted. They in fact designed the entire structure of the US government to be completely unwieldy so that it would not be at all easy to change what they had originally designed. And this was done to protect the landed rights of the American aristocracy.

Unlike what most proponents of the US Constitution claim, it is in fact not a very radical document at all but instead a rather flimsy one beset by more ambiguity than anything else. If it was as good as it is claimed to be it would hardly need Constitutional scholars to “interpret” it, which in of itself is a major failing of this document.

I agree with the author of this piece that the time for change is now given the terrible circumstances which the United States now finds itself embroiled in. However, what type of change are we talking about here? If it is political change, well guess what, you cannot do it with the current Constitution and the people we have in the legislative bodies now in place.

In this respect, the Constitutional Framers outdid themselves in that they created a weak document that promoted interpretation which in of itself is at the mercy of those doing the interpretation. And such interpretation has been hijacked not only by the republicans but by democrats as well both of whom will disallow any change to the status-quo at any cost.

The political change that is desperately needed now then simply cannot happen due to the circumstances that the original Constitutional Framers created. And this is what happens when a society assigns to much reverence to a simple piece of paper without fully understanding the consequences of that reverence.

Unlike the rest of the industrialized world, all of whom rewrote their constitutions after WWII, the United States still clings to a document that has been past its usefulness for a very long time. Instead of writing about the merits of this document maybe we should begin to consider throwing the whole thing out and starting fresh; building an entirely new political infrastructure from the ground up with new institutions and new political mechanisms that are not open to interpretation but are strictly designed to prevent the influence of corruption… and there are relatively simple ways to do this. The Anti-Federalists saw this in 1787 and we should be able to see it as well now.

After all, if the current Constitution and political institutions it spawned got us to the point we are now at, it really hasn’t served us all that well…

F. G. Sanford

July 10, 2012 at 19:09

The problem with rewriting, unfortunately, is the same as the problem with interpreting: in todays’ environment, it would be done by a bunch of semi-literate loons. And when I say that, I’m talking mainly about lawyers. Sure, they comply with the undergraduate prerequisites, take preparatory courses for the LSAT, enter Law School and memorize â€œcanned briefsâ€, and if they have the most important qualification, the ability to finance the whole charade, they eventually make it. But to claim they are â€œeducatedâ€ is fanciful at best. The same may be said for doctors and dentists. The dentist mentioned in the article above must have taken enough science courses to know better, but it is my understanding he is a hard-core ‘creationist’. In other words, one who subscribes to delusional fantasies in spite of irrefutable scientific evidence.

As we slip deeper into the â€œWeimarizationâ€ of the American economy and the dismantling of American education (Texas now subscribes to abandonment of ‘critical thinking’ in public education), Americans are fighting to maintain what they think is their best defense: firearms. Laughable when one realizes the only right the Nazis never infringed upon was gun ownership. A bunch of ‘Bubbas’ with deer rifles are no match for M-16’s and body armor. Tear gas, pepper spray, armored vehicles and crowd control now make short work even of the largest gatherings of protesters. Every ‘Occupier’ without a clue to to a clear agenda is carrying a tracking device: his or her cellphone. What do those morons think is happening when their phone is â€œrovingâ€? That information is all stored in a data base. Put your cell phone next to an FM radio, wait a few minutes, and you’ll see what I mean.

The game is over. Our loons are proud of their lunacy. Our population doesn’t have the education to recognize fascism when they see it. The media is essentially â€œstate controlledâ€. Even NPR is extolling the virtues of the â€œoppositionâ€ in Syria, openly known to be nothing more than the same entities we fought in Iraq and Afghanistan, but now they’re on our payroll. Drone strikes on rescuers and funerals amount to what were classified as â€œretribution killingâ€ and identified as war crimes during WWII, now they are conducted as policy. The â€œBrown Shirtsâ€, or Sturmabteilung, were deployed to maintain order during the days of political upheaval. Once power was consolidated, they evolved, just like TSA and various civilian security agencies are now evolving. Since 9/11, we’ve developed our own Sicherheitdienst (security police).

As the economy collapses (and if the LIBOR scandal is any indication, it’s a long way to the bottom), things will get much worse. I certainly don’t want ‘Bubba’ calling the shots. But in a way, the â€œSecurity Stateâ€ has its benefits. It keeps ‘Bubba’ on a short leash. The ‘Blackshirts’ of Mussolini’s day had an expression: â€œQuesta gente capiscono solo le mazzelleâ€. These people only understand billy clubs. That, unfortunately, is the general level of American intellectual prowess today. American pandering to right wing religious lunacy created fertile soil for fascism, and the coming harvest promises to be a bumper crop. When WWII was over, most of the Nazis still had their money, their property and their power. Of course, those ignorant of history will disagree: they only remember Nuremberg. BMW, I.G. Farben, Bayer, Krupp, Ford Motor Company and GM (yes, it’s true), Chase and even Prescott Bush all got to keep their money. Good luck rewriting the laws that protect that kind of wealth.

elmerfudzie

July 12, 2012 at 22:59

May I presume Mr Sandford that you have never met up with a “trip wire” Veteran? No short leash has been found for them, brother. Generally speaking, Bubba has come a long, long way since the 1930’s. He has been duly trained by Uncle Sam in the high tech gadgetry and art of professional military violence not to mention the lesser trained but formidable and organized force of the currently two million incarcerated plus an additional six million or so too slick to be found out. Now, chronically unemployed and because of their rather skewed skills not applicable in a civilian environ, is left dis-enfranchised, the honorable service and discharged, leaves more than just a few to sleep in alleys or flop houses or worse, returning with a bad habit. Even the VA hospital assistance proved to be inadequate. A similar fate awaits the released prisoner. My point is, the show down and battlefront won’t be street brawling confrontations, like the olden days of brown shirts kicking or killing commies, unionists and socialists, nor will it be against the riot gear donned uniformed authorities. Even so, you greatly underestimate the danger of a .306 round in the hands of a sharp eyed hunting type. Not to stretch the point too much but lately, Bubba’s basement is simply brimming with all variety of pilfered armor piercing, possibly shoulder fired surface to air rockets too. Just say one word to yourself, black-market, and you’ll get the idea. No, the “street fight” will take the form of an ever accelerating prodromal period of social unrest and disintegration. Today’s 1% are venturing into a brand new Unknown and recent history lessons will not be relevant to this time period. A possible scenario; the top universities may eventually require an equivalent to castle moats and extensive electronic fencing around every campus (costs defrayed by adding them to student tuition). The well established heroin pushers plague on the rich will pale in comparison to new M.O.’s like incessant hostage taking, with innumerable shake downs of all sorts and kinds. There won’t be a single snazzy beach, anywhere for the rich to rest their weary heads on (don’t start musing about stolen, hideaway Greek Islands). The day may come to pass where fear alone will bring metal detectors in each train station or for that matter, at “upper crust” graduation commencements! Then we’ll all wag our heads but it will be too late and long after the hornet’s nest had been vigorously shaken by certain elements within the 1%. You see Mr. Sanford, that is if you are a real person or is it an organization I’m communicating with? no matter, Bubba knows where all the important electrical substations are, by that I mean he’s the maintenance man, if you will, situated at the most vulnerable intersections of our daily lives. A stable society takes them for granted but more importantly they service the fancy addresses too! Let me repeat the imported, phrase from Europe, adopted by our very own protesting 99 percenter’s. A quotation from Senator Emma Bonino, Italian Minister of European Affairs and International Trade…”NO PEACE WITHOUT JUSTICE” The Italians know all about fascism Mr Sanford and so does Bubba!!

F. G. Sanford

July 13, 2012 at 01:31

So…are you trying to say Bubba will make things better…or worse? Sounds like you’re either trying to make my point, or you actually are Bubba. And by they way, the one percent have their own generators. Bubba won’t make any friends blowing up sub-stations. He’ll be working for the one percenters, guarding their generators, kissing ass, saying “Yes Sir” and getting minimum wage, if he’s lucky. The leash doesn’t get any shorter than that-just like it was for the brown shirts. And the minute he steps out of line, BANG! That high-tech military gadgetry and military violence stuff is bullshit too. The closest any of those clowns get to the black market is Cabelas. So keep dreamin’, Bubba-Imean, Elmer.

elmerfudzie

July 13, 2012 at 21:15

Mr Sanford, my arguments are perfectly clear. Leaving the whole issue of “Bubba” aside, there will be NO PEACE WITHOUT JUSTICE.

F. G. Sanford

July 14, 2012 at 01:13

Mr. Fudzie,
The only argument you have made is that there are disgruntled lunatics out there willing to commit violent acts in order to achieve whatever their notion of “justice” happens to be. Working within the framework of our government and the limits of the law, the government we have is the government we chose. If you are suggesting violence as a remedy to our problems, then you advocate neither peace nor justice. I would prefer a government of law to a government of vigilante hooligans any day. Unfortunately, they, and you seem to sympathize with them, are the kind of people who create conditions that lead to martial law and loss of individual freedom. Is that the kind of country that appeals to you? It certainly sounds like it.